Mackey v. Collins

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA [10] MICHAEL MACKEY, 11 Case No. 22-cv-04340 BLF (PR) Plaintiff, 12 ORDER OF DISMISSAL WITH v. LEAVE TO AMEND [13] 14 C. COLLINS, et al., 15 Defendants. [17] 18 Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 19 U.S.C. § 1983 against officers as San Quentin State Prison (“SQSP”) where he is currently 20 confined. Dkt. Not. 4. Plaintiff’s motion for leave to proceed in forma pauperis will be 21 addressed in a separate order. [22] 23 DISCUSSION 24 A. Standard of Review 25 A federal court must conduct a preliminary screening in any case in which a 26 prisoner seeks redress from a governmental entity or officer or employee of a 27 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 1 upon which relief may be granted or seek monetary relief from a defendant who is immune 2 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally 3 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 4 To state a claim under 42 U.S.C. § 1983 , a plaintiff must allege two essential 5 elements: (1) that a right secured by the Constitution or laws of the United States was 6 violated, and (2) that the alleged violation was committed by a person acting under the 7 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 8 B. Plaintiff’s Claims 9 Plaintiff alleges staff misconduct under 15 CCR 3040.1 and 15 CCR 3040.2(b),” 10 and that he suffered “inhumane prison conditions and treatment through staff misconduct 11 between officials CCIII C. Collins, D. Farez, Lt. T. Teixeira, and Capt. J. Arnold, on April 12 14, 2021.” Dkt. No. 4 at 2-3. Plaintiff claims he was placed in the Cognitive Behavioral 13 Intervention (“CBI”) Program, and that when he wanted to get out of the program, he was 14 threatened and given an RVR (rules violation report) for failing to attend. Id. at 3. 15 Plaintiff claims that he was found not guilty of the RVR, which was issued on April 14, 16 2021, but then later received another one from Defendant Collins on August 7, 2022. Id. 17 Plaintiff asserts that his claims are in accordance with “In re Harrell (1970) 2 Cal.2d 675 , 18 and Bounds v. Smith (1977) 430 U.S. 817 .” Id. at 2. Plaintiff requests a formal 19 investigation, adjudication of RVRs with the findings of not guilty on all accounts, that all 20 officers be disciplined, and immediate expungement of the RVR. Id. at 3. 21 There are several problems with this complaint. First of all, the two cases Plaintiff 22 sets forth as a basis for his claims are not obviously relevant to the allegations made 23 against Defendants. In re Harrell involves rights of California inmates to give and receive 24 mutual legal access, have access to the courts, and receive published materials. 2 Cal.2d 25 675 . Bounds involves the rights of prisoners to access to the courts by providing them 26 with law libraries or alternative sources of legal knowledge. 430 U.S. 817 . However, 1 denied him access to the courts. 2 Instead, Plaintiff asserts that he was wrongly disciplined for refusing to participate 3 in CBI, which is a specific type of health care service. Cal. Code Regs. tit. 15 § 3041.1. 4 However, his challenge to these disciplinary actions does not state a cognizable claim. 5 First of all, Plaintiff alleges that he was found not guilty of the RVR issued on April 14, 6 2021, and the supporting documents show that he received no sanctions. Dkt. No. 4 at 24. 7 Therefore, it cannot be said that Plaintiff suffered any unconstitutional deprivation with 8 respect to that RVR. 9 With regards to the second RVR allegedly issued on August 7, 2022, Plaintiff may 10 challenge that RVR only after the disciplinary proceedings have concluded and after he 11 has exhausted administrative remedies. The Prison Litigation Reform Act of 1995, Pub. L. 12 No. 104-134, 110 Stat. 1321 (1996) (“PLRA”), amended 42 U.S.C. § 1997e to provide that 13 “[n]o action shall be brought with respect to prison conditions under [ 42 U.S.C. § 1983 ], or 14 any other Federal law, by a prisoner confined in any jail, prison, or other correctional 15 facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 16 1997e(a). He clearly could not have exhausted administrative remedies at the time he filed 17 the instant complaint because he filed the complaint on the same day that the RVR was 18 issued. Dkt. No. 4 at 3 (signature dated August 7, 2022). Even if the disciplinary 19 proceedings have since concluded and administrative remedies are exhausted, Plaintiff 20 may state a cognizable claim only if he is able to allege all of the following: (1) he was 21 found guilty of the RVR, (2) he was deprived of the procedural protections under Wolff v. 22 McDonnell, 418 U.S. 539, 556-57 (1974), and (3) he suffered a deprivation of “real 23 substance” as defined in Sandin v. Conner, 515 U.S. 472, 487 (1995). 24 Lastly, the complaint fails to allege sufficient facts to support a claim against all the 25 named Defendants. Plaintiff alleges generally that Defendants Collins, Farez, Teixeira, 26 and Arnold engaged in staff misconduct that resulted in inhumane prison conditions and 1 support. The only specific allegations he makes are against Defendant Collins who issued 2 the RVR, but they are insufficient to state a cognizable claim for the reasons discussed 3 above. 4 Plaintiff shall be granted one opportunity to file an amended complaint to cure the 5 deficiencies discussed above and attempt to state a cognizable claim. Federal Rule of Civil 6 Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the 7 pleader is entitled to relief.” “Specific facts are not necessary; the statement need only 8 ‘“give the defendant fair notice of what the . . . claim is and the grounds upon which it 9 rests.”’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). “Factual 10 allegations must be enough to raise a right to relief above the speculative level.” Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007) (citations omitted). To state a 12 claim that is plausible on its face, a plaintiff must allege facts that “allow[] the court to 13 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 14 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Liability may be imposed on an individual 15 defendant under § 1983 only if Plaintiff can show that the defendant proximately caused 16 the deprivation of a federally protected right. See Leer v. Murphy, 844 F.2d 628, 634 (9th 17 Cir. 1988). A person deprives another of a constitutional right within the meaning of 18 section 1983 if he does an affirmative act, participates in another’s affirmative act or omits 19 to perform an act which he is legally required to do, that causes the deprivation of which 20 the plaintiff complaints. See Leer, 844 F.2d at 633 . [21] 22 CONCLUSION 23 For the foregoing reasons, the Court orders as follows: 24 1. The complaint is DISMISSED with leave to amend. Within twenty-eight 25 (28) days of the date this order is filed, Plaintiff shall file an amended complaint to correct 26 the deficiencies described above. The amended complaint must include the caption and 1 || “AMENDED COMPLAINT” on the first page. If using the court form complaint, Plaintiff 2 |} must answer all the questions on the form in order for the action to proceed. The amended 3 || complaint supersedes the original, the latter being treated thereafter as non-existent. 4 || Ramirez v. Cty. Of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). Consequently, 5 || claims not included in an amended complaint are no longer claims and defendants not 6 || named in an amended complaint are no longer defendants. See Ferdik v. Bonzelet, 963 7 || F.2d 1258, 1262 (9th Cir.1992). 8 2. Failure to respond in accordance with this order in the time provided g || will result in the dismissal with prejudice of this action for failure to state a claim, 10 without further notice to Plaintiff. 11 3. The Clerk shall include two copies of the court’s complaint with a copy of «12 || this order to Plaintiff. E B IT IS SO ORDERED. 14 || Dated: — December 5, 2022 __ Alinfhacicen__ BETH LABSON FREEMAN 15 United States District Judge [16] Oo Z 18 [24] 25 Order of Dism. With Leave to Amend PRO-SE\BLF\CR.22\04340Mackey_dwlta